Aquilio v. Continental Insurance Co.

March 31, 1998

JOY ANN AQUILIO, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF JOHN AQUILIO JR., DECEASED, PLAINTIFF-RESPONDENT,v.CONTINENTAL INSURANCE CO. OF NEW JERSEY, DEFENDANT-APPELLANT, ROYAL INSURANCE COMPANY OF AMERICA AND ST. PAUL MERCURY INSURANCE COMPANY AND/OR THE ST. PAUL PROPERTY & LIABILITY INSURANCE CO., DEFENDANTS.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County.

Before Judges Keefe, P.g. Levy and Wecker.

The opinion of the court was delivered by: Wecker, J.A.D.

Argued February 3, 1998

Decided

Defendant, Continental Insurance Company ("Continental"), appeals from the entry of summary judgment in favor of plaintiff, Joy Ann Aquilio (Aquilio), and the denial of its own motion for summary judgment. The parties dispute the amount of the total death benefit due plaintiff as the widow and Executrix of the Estate of John Aquilio, under the automobile insurance policy issued to plaintiff by Continental. As required by N.J.S.A. 39:6A-4d, prescribing mandatory personal injury protection (PIP) coverage, that policy provides death benefits consisting of the maximum income continuation benefits payable under N.J.S.A. 39:6A-4b plus the maximum essential services benefits payable under N.J.S.A. 39:6A-4c. Specifically, the question presented is whether the total death benefit provided in accordance with §4d must be calculated based upon the minimum required PIP benefits set forth in §4b and §4c, as defendant claims, or based upon the optional additional benefits offered by defendant and purchased by plaintiff pursuant to N.J.S.A. 39:6A-10. Plaintiff claims she is entitled to a total death benefit calculated on the basis of the "Option 5" PIP benefits of $41,600 in income continuation plus $14,600 in essential benefits.

Defendant relies upon the 1982 amendment to N.J.S.A. 39:6A-10, which states that such additional "income continuation and essential services benefits shall cease upon the death of the claimant, and shall not operate to increase the amount of any death benefits payable under [N.J.S.A. 39:6A-4]..." Relying on Capelli v. Twin City Fire Ins. Co., 209 N.J. Super. 552 (App. Div. 1986), the motion Judge held that because Continental did not notify Aquilio of any change in the terms of her policy upon post-1982 policy renewals, the amendment did not effect any reduction in the death benefit. We agree that plaintiff was entitled to summary judgment, and we therefore affirm. However, we do so for reasons different from those stated in the Law Division Judge's letter opinion of April 3, 1997. See Isko v. Livingston Tp. Planning Bd., 51 N.J. 162, 175 (1968) ("t is a commonplace of appellate review that if the order of the lower tribunal is valid, the fact that it was predicated upon an incorrect basis will not stand in the way of its affirmance").

Aquilio's husband was a pedestrian when he was killed as a result of a freak accident on January 2, 1992. Two cars collided at an intersection, and one jumped the curb, striking him. He died almost immediately. At the time of the accident, Aquilio had three insurance policies which included PIP benefits. One of those policies was with Continental. *fn1 It is undisputed that John Aquilio was covered by plaintiff's policy as a resident spouse of the named insured, Joy Ann Aquilio.

Soon after her husband's death, Aquilio reported her claim to Continental. Continental Loss Adjusting Company responded by letter dated January 28, 1992, asking plaintiff for verification that she was the executrix of her husband's estate. After Aquilio requested confirmation of her coverage, she received a letter dated January 31, 1992, which listed her benefits pursuant to Option 5 coverage as follows:

Aquilio then submitted her application for PIP coverage. Continental declined to pay the additional benefits under Option 5, contending that it was responsible only for the basic PIP coverage. *fn2 In denying the additional benefits, Continental relied on the above-quoted language added by the 1982 amendment to N.J.S.A. 39:6A-10.

Plaintiff filed suit. Continental answered and moved for summary judgment. Aquilio cross-moved for summary judgment, claiming that Continental issued her first policy in the 1970's, when she originally selected Option 5 benefits; that she continued to renew this same policy until her husband's death; and that she was never notified that a statutory amendment had changed her coverage.

The trial court denied Continental's motion for summary judgment and granted Aquilio's cross-motion for summary judgment from the bench on January 24, 1997:

This Court, by a reading of the dec. sheet and in conjunction with the policy issue, taking into consideration the original policy was issued prior to N.J.S. 39:6A as amended on January 12th, 1982 that the insured's claim for additional coverage is supportive by a letter dated January 31st, 1992 from Continental ...

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